1 TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD

:

2 PLEASE TAKE NOTICE that on May 31, 2017, at 8:30 a.m., or as soon thereafter as the
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3 ~ matter may be heard in Department M of the Los Angeles Superior Court, located at 1725 Main

4 ~ Street, Santa Monica, California 90401, defendants MJJ Productions, Inc., and MJJ Ventures, Inc.,

5 ~ will bring on for hearing their demurrer to the Third Amended Complaint of plaintiff James

6 Safechuck.
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7 The demurrer will be made pursuant to Code of Civil Procedure section 430.10 on the

8 ~ grounds that Safechuck's Third Amended Complaint is insufficiently pleaded because, among
a,
a 9 other things, it is uncertain and fails to state facts sufficient to constitute timely causes of action
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°p 11 This demurrer follows a meet and confer pursuant to Code of Civil Procedure § 430.41.

~3 ~~~ 12 Declaration of Jonathan P. Steinsapir (attached) at ¶ 2.
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~ Q~~ 13 This demurrer is based upon this Notice, the attached Demurrer, the attached
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W ~ ~`; 14 Memorandum of Points and Authorities, the Request for Judicial Notice, Safechuck's Third
F"~ m U O
z ~Z~ ~s Amended Complaint, Safechuck's prior complaints, any further briefing on this matter, the
~ =o°'
~ ~' ~ ° 16 Court's files and records in this case and in the related cases (including the probate proceedings,
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a ~ 18 presented in connection with any hearing on this matter.
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z 19 DATED: March 31, 2017 Respectfully Submitted:

20 KINSELLA WEITZMAN ISER KUMP &
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ALDISERT LLP
21

22

23 Jonathan P. Steinsapir
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24 Attorneys for Defendants
MJJ Productions, Inc. and MJJ Ventures, Inc.
25

26

27

28

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
DEMURRER

2 Defendants MJJ Productions, Inc., and MJJ Ventures, Inc.(collectively, "the
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3 Corporations"), herby demur to the Third Amended Complaint on the following grounds:

4 1. The First Cause of Action for "Intentional Infliction of Emotional Distress" fails as

5 a matter of law for either or both of the following reasons:(a)the facts alleged in the Third

6 Amended Complaint("TAC" or just "Complaint"), along with facts upon which the Court may
ily
7 ~ take judicial notice, fail to constitute a valid cause of action for "Intentional Infliction of

8 Emotional Distress" at all; and(b)the facts alleged in the Complaint, along with facts upon which
a
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~ 9 the Court may take judicial notice, do not sufficiently allege a timely cause of action for
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10 "Intentional Infliction of Emotional Distress"(or, stated differently, those facts affirmatively
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a ~ 11 confirm that this cause of action is barred by the applicable statutes of limitations, including but

~3 ~~~ 12 not limited to Code of Civil Procedure section 340.1, along with Code of Civil Procedure sections
ich
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~ ° ~ c~ 13 335.1, 340(3)(applicable to alleged tortious conduct prior to 2002), 352, and 366.2, and Probate
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~ ~v`; 14 Code section 9351). No amendment can cure these defects.
~ mQo
Z ~zao 15 2. The Second Cause of Action for "Negligence" fails as a matter oflaw for either or
~ =o~
~ ~~C° 16 both of the following reasons:(a)the facts alleged in the Complaint, along with facts upon which
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17 the Court may take judicial notice, fail to constitute a valid cause of action for "Negligence" at all;
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~ .7 ~ ig and(b)the facts alleged in the Complaint, along with facts upon which the Court may take judicial
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z 19 notice, do not sufficiently allege a timely cause of action for "Negligence"(or, stated differently,

x 20 those facts affirmatively confirm that this cause of action is barred by the applicable statutes of
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21 limitations, including but not limited to Code of Civil Procedure section 340.1, along with Code of

22 Civil Procedure sections 335.1, 340(3)(applicable to alleged tortious conduct prior to 2002), 352,

23 and 366.2, and Probate Code section 9351). No amendment can cure these defects.
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24 3. The Third Cause of Action for "Negligent Supervision" fails as a matter oflaw for

25 either or both ofthe following reasons:(a)the facts alleged in the Complaint, along with facts

26 upon which the Court may take judicial notice, fail to constitute a valid cause of action for

27 "Negligent Supervision" at all; and (b)the facts alleged in the Complaint, along with facts upon

28 which the Court may take judicial notice, do not sufficiently allege a timely cause of action for

DEMiIRRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
"Negligent Supervision"(or, stated differently, those facts affirmatively confirm that this cause of

2 ~ action is barred by the applicable statutes of limitations, including but not limited to Code of Civil
da
3 Procedure section 340.1, along with Code of Civil Procedure sections 335.1, 340(3)(applicable to

4 alleged tortious conduct prior to 2002), 352, and 366.2, and Probate Code section 9351). No

5 amendment can cure these defects.

6 4. The Fourth Cause of Action for "Negligent Retention/Hiring" fails as a matter of
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7 law for either or both ofthe following reasons:(a)the facts alleged in the Complaint, along with

8 facts upon which the Court may take judicial notice, fail to constitute a valid cause of action for
a
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~ 9 "Negligent Retention/Hiring" at all; and(b)the facts alleged in the Complaint, along with facts
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~ 10 upon which the Court may take judicial notice, do not sufficiently allege a timely cause of action
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~ ~om 12 cause of action is barred by the applicable statutes of limitations, including but not limited to Code
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~ Q~~ 13 of Civil Procedure section 340.1, along with Code of Civil Procedure sections 335.1, 340(3)
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'
^ J" 14 (applicable to alleged tortious conduct prior to 2002), 352, and 366.2, and Probate Code section
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~ =o°'
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17 ~ as a matter oflaw for either or both of the following reasons:(a)the facts alleged in the
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~ ~ ig Complaint, along with facts upon which the Court may take judicial notice, fail to constitute a
a
a
z 19 valid cause of action for "Negligent Failure To Train, Warn or Educate" at all; and (b)the facts

x 20 alleged in the Complaint, along with facts upon which the Court may take judicial notice, do not
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21 sufficiently allege a timely cause of action for "Negligent Failure To Train, Warn or Educate"(or,

22 stated differently, those facts affirmatively confirm that this cause of action is barred by the

23 applicable statutes of limitations, including but not limited to Code of Civil Procedure section
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24 340.1, along with Code of Civil Procedure sections 335.1, 340(3)(applicable to alleged tortious

25 conduct prior to 2002), 352, and 366.2, and Probate Code section 9351). No amendment can cure

26 these defects.

27 6. The Sixth Cause of Action for "Breach of Fiduciary Duty" fails as a matter oflaw

28 ~ for either or both ofthe following reasons:(a)the facts alleged in the Complaint, along with facts

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 upon which the Court may take judicial notice, fail to constitute a valid cause of action for

2 "Breach of Fiduciary Duty" at all; and (b)the facts alleged in the Complaint, along with facts upon
da
3 which the Court may take judicial notice, do not sufficiently allege a timely cause of action for

4 "Breach of Fiduciary Duty"(or, stated differently, those facts affirmatively confirm that this cause

5 of action is barred by the applicable statutes of limitations, including but not limited to Code of

6 Civil Procedure section 340.1, along with Code of Civil Procedure sections 335.1, 340(3)
ily
7 (applicable to alleged tortious conduct prior to 2002), 352, and 366.2, and Probate Code section

8 9351). No amendment can cure these defects.
a.
a 9 WHEREFORE,the Corporations pray that this demurrer be sustained without leave to
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101 amend, and that the Court grant such other and further relief as the Court deems just and proper.
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Q¢ ~n 11 DATED: March 31, 2017 Respectfully Submitted:
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Q ~~ KINSELLA WEITZMAN ISER KUMP &
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14
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Z ~z~ 15 Jonathan P. Steinsapir
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16 Attorneys for Defendants
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MJJ Productions, Inc. and MJJ Ventures, Inc.
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20
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21

22

23
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24

25

26

27

28

DEMiJRRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
I. INTRODUCTION

2 This case, along with the facts and law governing it, are by now familiar to the Court.
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3 ~ Plaintiff James Safechuck seeks to recover money damages against the Estate of Michael Jackson,

4 through this civil action against two corporations, Defendants MJJ Productions, Inc., and MJJ

5 Ventures, Inc.("the Corporations"). The Corporations were wholly owned by Michael Jackson

6 'i ~ during his lifetime and are now specific assets of the Estate generally. Five years after Michael's
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7 ~ death, Safechuck petitioned to file a late creditor's claim against the Estate in May 2014. That

8 petition was dismissed after two demurrers, the second being sustained without leave to amend
.
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a 9 (with Safechuck wisely declining to seek appellate review of it). In this civil action, Safechuck has
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~3 ~~~ 12 This is a demurrer to Safechuck's operative Third Amended Complaint("TAC" or
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~ ¢~~ 13 ~ "Complaint"). It is now the third demurrer against Safechuck's claims in this civil action, thefifth
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~ ~ ~`; 14 demurrer involving Safechuck and the Estate. With the exception of a few sham and conclusory
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~ =o~
~ ~'~~° 16 law in any event), the latest Complaint is virtually unchanged from the Second Amended
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17 Complaint("SAC"), which the Court found insufficient to state a single cause of action.

1•a ~ 10 The handful of further allegations do not sufficiently address the defects identified by the
a
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x 20 were not addressed at all. This demurrer should be sustained without any further leave to amend.
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21 II. ALLEGATIONS OF THE THIRD AMENDED COMPLAINT

22 Given the Court's familiarity with this action, we limit our discussion here to the few

23 changes made from the Second Amended Complaint to the Third Amended Complaint. The Third
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24 Amended Complaint does not alter any allegations regarding the following:(1) Michael Jackson

25 having "established" both ofthe Corporations, being the "president/owner" of both entities, and

26 ~ ~ the entities being his "alter egos for the childhood sexual abuse alleged herein," and his

27 "alternative personalities](TAC ¶¶ 3-5, 9, 100);(2) Safechuck's background, how he and his

28 family came to know Michael Jackson personally, and the Safechucks' fleeting interactions with

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
11 ~ the Corporations and their employees (id. ¶¶ 10-30);(3)the substantive (albeit false) allegations of

2 1 ~ abuse, which supposedly took place at times from mid-1988 "through 1992" and supposed
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"grooming" by Michael (id. ¶¶ 31-63, 83-100);(4)the Safechucks' and Michael's interactions

after the alleged abuse ended in 1992 (id. ¶¶ 64-76), and (5) various other matters. As necessary,

we discuss these common allegations more specifically below in the Argument section.

As best we can tell, the "new" allegations are largely contained in paragraphs 112, and 114
ily
through 116. Plaintiff now alleges that the Corporations were created in part to "provide for the

8 welfare and safety of minor children." 1 (TAC ¶ 114.) Safechuck further alleges in conclusory
a
a 9 fashion that:(1) Michael Jackson and the Corporations "groomed" children in the entertainment
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~ ~~~ 12 minors were trained and mentored by Michael and were cared for by staff ofthe Corporations,
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a ~ 18 the alleged abuse ended.(Id. ¶ 69.) Then, in 1995, Safechuck was supposedly "employed by
a
z 19 Michael Jackson andlor MJJ Productions and MJJ Ventures."(Id. ¶ 70(emphasis added).)

x 20 Plaintiff now alleges in conclusory fashion that some unnamed "board of directors and
l.c

21 officers" of the Corporations "conferred substantial actual and ostensible authority unto Michael

22 Jackson."(TAC ¶ 114.) They "permitted" Michael: to sleep in bed with minors (in his own home);

23 to "train and coach" minors; to travel with minors; and to "have authority" over minors.(Ibid.)
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24

25
1 This, of course, is directly contrary to the Complaint's ludicrous allegations that the
Corporations were "likely the most sophisticated public child sexual abuse procurement and
26
facilitation organization the world has known."(TAC ¶ 5.) For some perspective, and to learn
about nonfictional child sex trafficking rings throughout the world, one should visit the website of
27
UNICEF. https://www.unite£org/protection/57929_58022.htm1#CT.
28

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 Plaintiff alleges that the Corporations employed individuals who were "ceded authority by

2 Defendants to supervise Michael Jackson and the minors in his charge."(Id. ¶ 115.) He further
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3 alleges that:(1)Norma Staikos and Jolie Levine were employed by the Corporations;(2)the

4 "safety, welfare, and well-being of all minor children entrusted to [the Corporations] was Ms.

5 Staikos and Ms. Levine's primary responsibility," and they were required to protect minors from

6 dangers including Michael Jackson; and (3) Michael Jackson took no actions to provide for safety
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7 and care.(Ibid.) The Complaint further alleges that Ms. Levine and Ms. Staikos somehow had the

8 authority to limit Michael Jackson's access to children by dictating to the children's parents that
.
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~3~~~ 12 at Michael's home.(Ibid.) Finally, Plaintiff alleges that Ms. Levine and Ms. Staikos "knew or had
ich
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~ ~~~ 13 reason to know" that Michael Jackson had a propensity to abuse children, had the authority to
0
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~ ~~~ 14 implement some sort of"reasonable safeguards" but failed to do so.(Id. ¶ 116.)
~ mQo
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15 As explained below, these new allegations: contradict more specific allegations in the
~ =o
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~ ~ 18 III. ARGUMENT
a
z 19 A. Section 340.1.
.
,
x 20 Code of Civil Procedure section 340.1 ("section 340.1")is a statute of limitations. It does
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21 not itself create duties of care and is not otherwise a basis for liability. At the same time, its

22 provisions cannot be wholly divorced from an assessment of the viability ofthe causes of action

23 here. Safechuck turned 18 on February 28, 1996.(TAC ¶ 10.) Absent section 340.1, all of his
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24 ~ claims would have been time barred as of February 28, 1997,"one year after [he] reached the age

25 of majority, that is ... the age of 19." Quarry v. Doe I, 53 Ca1.4th 945,960-61 (2012).

26 The Corporations are "entities" and not "natural persons." Thus, the Corporations cannot

27 ~ be liable as a "direct perpetrator" under subdivision (a)(1), including "as aiders and abettors or as

28 child procurers." Boy Scouts v. Superior Court, 206 Ca1.App.4th 428,445(2012)(directing trial

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 ~ court to sustain demurrer without leave against Boy Scouts for lone cause of action for intentional

2 ~ infliction of emotional distress). Claims against third parties are generally barred "on or after the
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3 plaintiff's 26th birthday." Code Civ. Proc. § 340.1(b)(1). Safechuck commenced this action long

4 after his 26th birthday.(TAC ¶ 10.) Thus, in order for any of Safechuck's causes of action to be

5 viable, they must fall within section 340.1(b)(2),"a special exception to the age 26 cutoff."

6 ~ Quarry, 53 Ca1.4th at 968(emphasis in original).
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7 Section 340.1(b)(2) is directed "against a narrow category of third party defendants," id. at

8 ~ 978, who have a right to control the perpetrator such that they could take "reasonable steps and[]
a,
'a~ 9 implement reasonable safeguards to avoid acts of unlawful sexual conduct in the future by" the
m
~ 10 perpetrator. Code Civ. Proc. § 340.1(b)(2)."The third party must be in such a relationship with the
o
A o~~ 11 perpetrator as to have some control over the perpetrator." Aaronoffv. Martinez- Senftner, 136

~3~~~ 12 Ca1.App.4th 910,921 (2006). Subdivision (b)(2)"requires the sexual conduct to have arisen
ich
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~ ~~~ 13 through an exploitation of a relationship over which the third party has some control."'Doe v. City
0
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~ ~ ~~ 14 ofLos Angeles,42 Ca1.4th 531, 544(2007)."The child must be exposed to the perpetrator as an
~ mQo
z ~Z°D 15 inherent part ofthe environment created by the relationship between the perpetrator and the third
~ =o~
~ ~~~ 16 party." Aaronoff, 136 Ca1.App.4th at 921 (emphasis added).
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17 This makes sense when one recalls that the Legislature enacted subdivision (b)(2) to
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y.~ ~ 10 extend the limitations period "in the wake of public exposure of sexual abuse by priests against
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20 Quarry, 53 Ca1.4th at 988. Organizations like churches, schools and the Boy Scouts are in a
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21 position to supervise or remove perpetrators if they learn of past abuse, because the organizations

22 have a right to control their pastors', teachers' or troop leaders' respective interactions with

23 children in their organizations. Likewise, children are "exposed to the perpetrator" pastors,
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24 teachers, or troop leaders "as an inherent part of the environment created by the relationship

25 between the perpetrator and the third party" churches, schools, and youth organizations.

26 Here, unlike the cases subdivision (b)(2) was designed to address, the Corporations were

27 ~ created, owned and run by the alleged perpetrator—they were his alleged "alter ego" and

28 "alternative personalities"(TAC ¶¶ 5,9~and there are no factual allegations that the

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 Corporations had a legal right to control Michael in any relevant way. And as further explained

2 below, the alleged abuse clearly did not arise as an inherent part of the of the environment created
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3 by the relationship between Michael Jackson and the Corporations. Therefore, all of the causes of

4 action are time barred under section 340.1(b)(2).

5 B. The Second Through Fourth Claims Fail Because the Corporations Did Not

6 Hire, Supervise or Retain Michael Jackson, and Had No Right To Do So.
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7 Safechuck's second through fourth causes of action against the Corporations are for

8 ~ negligence, negligent supervision, and negligent hiring/retention of Michael Jackson by the
.
.
.,
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~ 9 Corporations. 2 In California, an "employer may be liable to a third person for the employer's
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10 negligence in hiring or retaining an employee who is incompetent or unfit." Roman Catholic
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~3 ~~~ 12 negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor
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~ ~~M 13 had prior knowledge ofthe actor's propensity to do the bad act." Z. V. v. County ofRiverside, 238
x Q o~
~ ~~`; 14 Ca1.App.4th 889, 902(2015)(emphasis added)."The tort has developed in California in factual
0
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~ z °' 15 settings where the plaintiff's injury occurred in the workplace, or the contact between the plaintiff
~ =o
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~ 16 and the employee was generated by the employment relationship." Mendoza v. City ofLos
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w o~~ 17 Angeles,66 Ca1.App.4th 1333, 1339-40(1998). These concepts fit neatly with section
~ 00 w
a ~ 18 340.1(b)(2)'s requirement that "[t]he child must be exposed to the perpetrator as an inherent part
a
z 19 ofthe environment created by the relationship between the perpetrator and the third party."

x 20 Aaronoff, 136 Cal.App.4th at 921 (emphasis added). These claims fail for various reasons.
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21 1. The Corporations Did Not Hire, Retain or Supervise Michael.

22 The negligent supervision, hiring and retention claims all fail as a matter oflaw because
23 the Corporations did not have the power to supervise, hire or fire Michael Jackson, their owner,
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24 sole shareholder, and president. To address this problem from the Second Amended Complaint,

25

26
z The general negligence claim is really just a repeat of the negligent supervision and
related claims. Safechuck has also alleged negligence based on a "mandated reporter" theory and
27
"in loco parentis" duty which are discussed separately below at Section III.D.
28

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 Safechuck added conclusory allegations that the "board of directors and officers of[the

2 Corporations] conferred substantial actual and ostensible authority unto authority unto Michael
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3 Jackson,"(TAC ¶ 114), and that the Corporations somehow supervised Michael.(Id. ¶¶ 114-115).

4 Ofcourse, there is no allegation about who this "board" supposedly consisted of. That was no

5 ~ accident as Safechuck knows from discovery in this case, during all relevant times here, Michael

6 ~ Jackson was the sole director of the Corporations, i.e., he was the sole member of the Board. See
ily
7 Corp. Code § 212(a)("so long as the corporation has only one shareholder, the number [of

8 directors] may be one"). Regardless, for at least two reasons, these conclusory allegations, added
a
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~3~~~, 12 ~ "confer authority" on the sole shareholder. It is precisely the other way around. As sole
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x Q o~

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I-~~1 m Q p
Z ¢ z o0 15 Board of Directors. Corp. Code § 300(a). In turn, the Board is controlled by the shareholders.
~ =o~
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^~o~~ 17 controls the Board entirely. The Board is elected "by unanimous written consent of all shares."
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~] ~ ig Corp. Code § 603(d). Any member ofthe Board may be removed by the sole shareholder."Any or
a
a
z 19 all ofthe directors may be removed without cause if the removal is approved by the outstanding

x 20 shares." Id. § 303(a). A corporation's officers are also controlled by the sole shareholder, through
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21 his control ofthe Board. A corporation's "officers shall be chosen by the board and serve at the

22 pleasure of the board." Id. § 312(b). Michael was the sole shareholder of the Corporations. He

23 could not "negligently" hire himself, negligently "retain" himself, or negligently "supervise"
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24 himself. See, e.g., Coit Drapery Cleaners v. Sequoia Ins. Co., 14 Ca1.App.4th 1595, 1601-02

25 (1993)("the trial court properly found that there was no way Coit, the corporate entity, could have

26 disciplined or supervised its president, chairman ofthe board, and major shareholder.").

27 Second, setting aside the insurmountable legal bar to Safechuck's argument under the

28 ~ Corporations Code,the general, conclusory allegations that some "board of directors and officers"

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
of the Corporations hired, supervised or could have fired Michael are contrary to more specific

2 ~ allegations ofthis Complaint(and the prior complaints). Careau & Co. v. Sec. Pac. Bus. Credit,
da
3 ~ Inc., 222 Cal.App.3d 1371, 1390(1990)(on demurrer, specific allegations control over

4 inconsistent general allegations). Safechuck readily admits that both Corporations were

5 "established by Michael Jackson ... as his primary business entity" and "in part for the purpose of

6 employing" Safechuck, respectively.(Id. ¶¶ 3- 4.) These more specific allegations defeat the
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7 general conclusory allegations that some board of directors and officers "conferred authority" on

8 Michael Jackson and thus hired him (or could have fired or better supervised him). Safechuck

a 9 expressly alleges that Michael was "the president/owner" of both entities,(ibid.), and he alleges
m
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o
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a ~' 11 were Michael's "alternative personalit[ies]."(Id. ¶¶ 5, 9, 100.) Accordingly, these Corporations

~3 ~~~ 12 had no existence or purpose other than to conduct Michael's business. Safechuck acknowledges
ich
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~ ¢~M 13 that "at all times relevant to the allegations,[Michael Jackson] was the one hundred per cent
0
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CG ~v`; 14 (100%)shareholder of[MJJ Productions and MJJ Ventures]."(RJN, Ex. A and Ex. B at ¶ 11.)
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~ = o °>
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~ 16 statements that some "board of directors and officers" of the Corporations hired, supervised or
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17 could have fired Michael. Popescu v. Apple Inc., 1 Ca1.App.Sth 39, 50(2016)(trial court should
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~~.1 ~ 1g disregard conclusions in pleadings at demurrer). There are likewise no allegations regarding what
a
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.
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21 and contradicts Safechuck's allegations throughout the Complaint and in all prior pleadings.

22 Simply put, the new allegations do not in any way suggest that Ms. Staikos, Ms. Levine or anyone

23 else working for the Corporations truly hired Michael Jackson, supervised him, or had the ability
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24 tofire him. Indeed, Safechuck specifically alleges that Michael Jacksonfired others for even

25 asking about Safechuck because he was "paranoid" about such questions.(TAC ¶ 53.)

26 Although Safechuck has added a few conclusory allegations about the Corporations, they

27 ~ ~ are insufficient to overcome Safechuck's allegations of Michael's clear control over the

28 Corporations. Furthermore, Safechuck has°utterly failed to allege(1) what Michael's Corporations

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 should have done in order to avoid negligently hiring Michael,(2) who had the authority to fire or

2 otherwise discipline Michael, and (3) who actually possessed any supervisory control over
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3 Michael. The reason for the absence of such allegations is obvious, and Safechuck cannot cure this

4 deficiency by further amendment. These deficiencies demonstrate why the negligence claims fail

5 on their own as well as why Safechuck could never meet the requirements under 340.1(b)(2). See

6 Joseph v. Johnson, 178 Ca1.App.4th 1404, 1412(2009)(negligence theories under section
ily
7 340.1(b)(2) require that third party have "right to control" alleged perpetrator).

8 2. The "Contact" was Not Generated From an Employment Relationship.
o,
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a As a second independent reason why the claims for negligent supervision, hiring and
m
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10 retention claims fail, the alleged "contact" between Safechuck and Michael Jackson was not
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a o~~
~ ~om 12 later employment relationship between Safechuck and the Corporations). Mendoza,66
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13 Ca1.App.4th at 1339-40. Or to use the same concept from section 340.1(b)(2), Safechuck's contact
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r~ ~U• 14 with Michael did not arise "as an inherent part of the environment created by the relationship
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°° 15 between [Michael Jackson] and the [Corporations]." Aaronoff, 136 Ca1.App.4th at 921.
~= o °~
~ ~~~ 16 Rather, as set out in specific detail in the Third Amended Complaint(and prior versions of
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17 it), Michael's and Safechuck's friendship developed before the Corporations had any involvement
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a 1O in anything regarding Safechuck. Safechuck alleges that, long before he met Michael, he started
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allege who hired him—presumably,it was Pepsi or its advertising agency.)(TAC ¶ 10.) Safechuck
21 alleges that he and Michael thereafter exchanged letters, visited each other's homes numerous

22 times, handed out money to the homeless, watched movies, talked on the phone, hung out, got to

23 know each other well, and became close friends—all before any alleged abuse occurred.(TAC
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24 ¶¶ 12-27.) Safechuck alleges that the abuse began in June 1988 when he and his mother joined

25 Michael on the Bad Tour, well over a year after the personal relationship had developed between

26 Michael, on the one hand, and Safechuck and his family, on the other. (Id. ¶ 31.) Safechuck

27 alleges that Ms. Levine, Michael's secretary and personal assistant, was employed by Michael and

28 the Corporations in 1988 (including one that did not exist) and made travel arrangements for the

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 ~ Bad tour where the abuse allegedly began.(Id. ¶¶ 28-30.) But this does not shift the core

2 ~ relationship between Michael and Safechuck from personal to business. Plaintiff has failed to
da
3 ~ articulate how the abuse arose out of the relationship with the Corporations or how the

4 ~ Corporations were a necessary or proximate cause of the abuse.

5 The nexus between the Corporations and Michael's alleged abuse of Safechuck is

6 ~ attenuated at best. That fleeting nexus did not create the opportunity for Michael to allegedly
ily
7 molest Safechuck."An employer is not charged with guaranteeing the safety of anyone his

8 employee might incidentally meet while on the job against injuries inflicted independent ofthe
.
~
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a 9 performance ofwork-relatedfunctions." Federico v. Superior Court, 59 Cal.App.4th 1207, 1215
m
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~

~ ~ ~ ;~ 12 businesses depended—or should have fired or "supervised" him, this would have done nothing to
ich
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~ ~~~ 13 change Michael's access to Safechuck. The Complaint specifically alleges that the relationship
x Q o ,~
~ v`; 14 between Michael and Safechuck and his family began and grew as a result of Michael's personal
F"~ m Q O
Z ~ z °0 15 fame.(TAC ¶¶ 13-18.) The Corporations were irrelevant to how the relationship began and grew.
~ =o~
~ J~~° 16 The relationship between Michael and Safechuck was not a result of a connection between
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~ oNmJ 17 Michael and his corporations, as opposed to pastors', teachers' or scout masters' relationships to
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~ .7 ~ 1g children, which are a direct result of the relationship between the pastors, teachers, or scout
a
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z 19 masters and the church, school or troop. Doe,42 Ca1.4th at 544; Aaronoff, 136 Ca1.App.4th at 921.

x 20 Accordingly, even if Plaintiff could get by the fact that the Corporations, by definition,
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21 ~ never hired, supervised, or retained Michael Jackson at all, the alleged connection between the

22 Corporations and Michael's supposed abuse is far too attenuated to support these claims.

23 C. All Negligence Causes of Action Fail Because Safechuck Cannot Allege That
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24 the Corporations Had A Duty To Protect Him.

25 Whether a duty of care exists "is properly challenged by demurrer and is a question of law

26 for the court." Hegyes v. Unjian Enterprises, Inc., 234 Ca1.App.3d 1103, 1111 (1991)."As a

27 ~ general rule, one owes no duty to control the conduct of another, nor to warn those endangered by

28 such conduct." Conti v. Watchtower Bible &Trade Society ofNew York, Inc., 235 Ca1.App.4th

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 ~ .1214, 1226(2015)."The rule is foundational in California tort jurisprudence. The tort law of

2 ~ California does not impose mandatory Good Samaritanism." Ibid.
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3 Safechuck's negligence causes of action appear to rest on the general exception to the rule

4 ~ of no duty of a third party to protect against, or prevent, a crime, i.e., when there is a "special

5 ~ relationship" between the third party and the victim."Absent a `special relationship,' one cannot

6 ~ be held liable for the mere nonfeasance, such as not protecting another from a criminal attack by a
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7 third party." Eric J. v. Betty M., 76 Ca1.App.4th 715, 727(1999)."[W]here the issue is whether the

8 defendant had a duty to protect the plaintifffrom harm caused by a third party, the absence of a
.
o
a 9 special relationship is dispositive." Conti, 235 Ca1.App.4th 1228-29.
a
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o
A o ~~ 11 relationship alleged in the Complaint between the Corporations and Plaintiff that could possibly

~3~~~ 12 give rise to such a legal duty. Safechuck has not, and cannot, explain why the Corporations, who
ich
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13 had no relationship with him during the time he was allegedly abused, are somehow liable for his
~ Q~~
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~ mQo
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~ ~Q;~ 16 everyone from such alleged misconduct, regardless of the connection to the corporations. This is
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17 particularly implausible when the alleged wrongdoer is "the president owner" ofthe company. See
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a ~ 18 Coit Drapery, 14 Ca1.App.4th at 1605. Nothing in California law would support such an invasive
a
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z 19 conception of corporations' duties to the general public.
.
,
x 20 A special relationship giving rise to a duty to protect a child from criminal conduct is
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21 ~ generally reserved for schools, day care centers, or other youth organization such as the Boy

22 Scouts who act in loco parentis while a child is in attendance. See Juarez v. Boy Scouts of

23 America, Inc., 81 Cal.App.4th 377, 410-411 (2000). By contrast, the Court of Appeal has held that
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24 "there is no special relationship[]creating a heightened duty of care [to protect a child from

25 sexual abuse] based on a priest/parishioner relationship." Roman Catholic Bishop, 42 Ca1.App.4th

26 at 1568. Similarly, a church also has no special relationship with its minor congregants to warn

27 them regarding potential dangers posed by other church members. Conti, 235 Ca1.App.4th at

28 1227-28. Further, the Court of Appeal has held that family members of a convicted, serial

18
DEMCJRRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
pedophile had no special relationship with the pedophile's girlfriend or her eight-year old son, to

warn them of possible harm when hosting the girlfriend and her son at their house. See Eric J., 76
da
~ Ca1.App.4th at 727-30. This was despite thefact that the pedophile's parole officer had warned the

~ family that the pedophile should not be in contact with children. Id. at 719.

Here, the Complaint acknowledges that the Corporations were Michael's personal business

~ entities. Although Safechuck now claims that the Corporations "groomed" children for the
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~ entertainment industry, and that Ms. Staikos and Ms. Levine had some supervisory responsibility

8 for children, these sham allegations do not come close to alleging that the Corporations were
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o
A o ~~ 11 regarding the risk of sexual abuse by their owner, Michael Jackson.3 The Corporations were

~3LL~~ 12 private corporations that were owned 100% by Michael Jackson and used by him to conduct his
ich
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~ mQo
~ ~s allegation in the Complaint that any of the alleged sexual abuse took place at the Corporations'
~ =~ zo~
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ae
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a ~ 18 Safechuck's reliance in the Complaint on Pamela L. v. Farmer, 112 Cal.App.3d 206
a
z 19 ~ (1980)(see TAC ¶ 113)is entirely misplaced because the alleged abuse in that case took place in

x 20 the respondent's home (id.at 209-210), whereas the alleged abuse here took place in Michael's
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21
3 Safechuck's new allegations that Defendants provided food, cleaning services (at
22
Michael's home)or arranged travel are insufficient to create an in loco parentis relationship.
Furthermore, such allegations are bizarre in light of the fact that Safechuck's actual parent was
23
travelling with Safechuck on the tour when the abuse allegedly began, and was with him during
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almost all of his interactions with Michael Jackson. In any event, there is literally nothing in the
24
Complaint to support these allegations that the Corporations took Safechuck from his parents'
care. At best, there are allegations that might potentially support an allegation that Michael took
25
Safechuck from his parents' care (and, really, there are no such allegations ofthat either). For
Safechuck to show that the Corporations are liable for Michael supposedly taking Safechuck away
26
from his parents, Safechuck would have to allege facts to support a finding that Michael's acts in
that regard were "causally attributable to his employment" by the Corporations. Lisa M. v. Henry
27
Mayo Newhall Mem'l Hosp., 12 Cal. 4th 291, 301 (1995). No such facts are alleged.
28

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 'I ~ residences as opposed to at the Corporations'offices. Allegations that Michael used the

2 Corporations to make travel arrangements do not support the allegation that Safechuck was under
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3 ~ the Corporations' supervision or custody.

4 Moreover, even if one were to find that the facts here were reminiscent ofPamela L., the

5 ~ negligence theory in that case does not come within the scope of section 340.1(b)(2). In Pamela

6 ~ L., the Court of Appeal reversed an order sustaining a demurrer to negligence claims against a
ily
7 molester's wife for inviting young girls to her house to swim with her husband when she was not

8 there (despite knowing about her husband's criminal propensities). Id. at 209-10. That negligence
a 9 theory could not come within the scope of section 340.1(b)(2), because a wife has no legal "right
a
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.
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Q o~~ 11 to which section 340.1(b)(2) is directed. Quarry, 53 Ca1.4th at 978. Indeed, the Court of Appeal

a3~~~ 12 specifically held that a comparable theory in Joseph v. Johnson, 178 Ca1.App.4th 1404(2009),
ich
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~ ~ ~ c~ 13 was outside the scope of section 340.1(b)(2) in affirming a demurrer without leave to amend. See
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~. 14 id. at 1412(wife's negligent entrustment of nieces to alleged molester-husband not within scope of
~ mQo
z ~ Z 00 15 340.1 (b)(2), because wife had no "right to control" husband's conduct)(emphasis added).
~ =o~

~3 Q~, 16 D. The Second Cause of Action Fails Because Safechuck Has Not And Cannot
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17 Adequately Plead Allegations Supporting A Negligence "Per Se" Claim
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a ~ ig Safechuck did not make any new allegations in support of his deficient claim that the
a
z 19 Corporations were mandated reporters and failed to report Michael to the authorities under the

x 20 Child Abuse and Neglect Reporting Act, Penal Code §§ 11166 et seq.(TAC,¶¶ 131-140.) The
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21 "mandatory reporter" allegations are meritless, because Safechuck has not alleged facts:(1)that

22 ~ ~ would support a finding that the Corporations or any specific employees of the Corporations were

23 "mandated reporters" or "child care custodians" under the statute as operative at the relevant time;
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24 and (2)that any employee of the Corporations other than Michael directly supervised him.

25 The Penal Code does not create some general duty on the part of all entities or persons to

26 ~ ~ report suspected child abuse by anyone connected to such persons or entities. As noted above, the

27 law is squarely to the contrary. Eric J., 76 Ca1.App.4th at 727-30. Rather, Penal Code section

28 1 1165.7 specifically defines a "Mandated Reporter" to include certain employees of various types

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
of public and private organizations such as teachers at public and private schools who regularly

2 provide services to children. The Corporations' employees do not fall within any ofthe categories
da
3 of individuals required to report under the statute. In any event, the Complaint still does not

4 identify which class ofemployees were supposedly mandatory reporters and why under the version

5 ofthe Penal Code in effect at the time 4, or provide a factual basis to support such contentions. Nor

6 does the Complaint allege what specific events gave rise to any of the Corporations' employees'
ily
7 supposed obligation to report. At best, Safechuck now claims that Ms. Levine and Ms. Staikos

8 were responsible for the well-being of children, but there are no allegations that they provided any
a
a 9 supervision of Safechuck beyond making travel arrangements or that they fell under any
a
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a 10 particularly category of"child care custodian" or "mandated reporter" under the relevant version
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A ¢ ~ 11 of the statute. The new allegations do cure the deficiencies.
a °0°
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~ ~o~ 12 E. The First Cause of Action Fails Because Safechuck Has Not Adequately Pled
o rn ~
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~ °~ r~ 13 Facts Supporting a Claim for Intentional Infliction ofEmotional Distress
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14 Safechuck has not alleged any new facts in support of his claim for intentional infliction of
~ mQo
Z ~z°° 15 emotional distress. Safechuck's intentional infliction allegations claim that a reasonable person
~ =o~
N J~~ 16 would not expect "putting Michael Jackson in positions of authority at MJJ Productions,[and]
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17 MJJ Ventures."(TAC ¶ 123.) Although the TAC now loosely alleges that the "board" conferred
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a 18 authority on Michael, the allegation cannot be squared with California law which makes clear that
a
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z 19 the sole shareholder controls the board, as well as Plaintiffls allegations that both Corporations
x 20 were "established by Michael.Iackson."(Id. ¶¶ 3-4.) To the extent the Court assumes Michael was
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21 ever acting as an agent of the Corporation, he put himselfin the position of authority.

22 Safechuck alleges that a "reasonable-person would not expect or tolerate Defendants to be

23 incapable of supervising and preventing employees of Defendants, including Michael Jackson,
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24 from committing wrongful sexual acts."(Id. ¶ 124.) This allegation, however, admits that the

25

26
4 This statute has been amended several times and is very different from the versions in
effect between 1988 and 1992. Safechuck cannot rely on the present version of the statute. Penal
27
statutes are rarely, if ever, retroactively applied. See U.S. Const., art. I, § 10, cl. 1.
28

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1. Corporations were "incapable of supervising and preventing ... Michael Jackson,from

2 committing wrongful sexual acts." To the extent that "outrageous conduct" is that Defendants
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3 were "incapable" of supervision, the claim is necessarily outside the scope of section 340.1(b)(2).

4 That section requires that the Corporations "could have employed safeguards to prevent the sexual

5 assault ... [and] requires the sexual conduct to have arisen through an exploitation of a

6 relationship over which [the Corporations] have]some control." Doe,42 Ca1.4th at 544.
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7 Safechuck also alleges that the Corporations' conduct was "intentional and malicious."

8 (TAC ¶ 125.) To the extent that Safechuck is really alleging that the "outrageous" conduct was the
a
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~ 9 alleged molestation by Michael himself, or the alleged "procurement" by the Corporations, the
m
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o
A o ~~ 11 340.1(a)(1), and are accordingly time-barred. Boy Scouts, 206 Ca1.App.4th at 442,445 (claim for

~3 ~~~ 12 intentional infliction of emotional distress because Boy Scouts were alleged "child procurers"
ich
~+mgo
~ Q~M 13 cannot be stated against corporations; that is a claim for direct perpetrator liability under section
0
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LL
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~ ~~, 14 340.1 (a)(1) and corporations cannot be liable thereunder); Aaronoff, 136 Ca1.App.4th at 920-21
~ mQo
z ~ z~ ~s "nonsensical" to apply sections 340.1(a)(2) and (a)(3)to conduct covered by direct perpetrators).
a =o~
~ ~'~~° 16 Also, there is no basis for holding the Corporations liable on the basis of respondeat superior for
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17 the alleged abuse, even if it is recharacterized as infliction of emotional distress. Delfino v. Agilent

H] ~ 10 Techs., Inc., 145 Ca1.App.4th 790, 815(2006)(corporation not vicariously liable for infliction of
a
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z 19 emotional distress caused by employee's use of work computer to send cyberthreats "because

x 20 [employee] substantially deviated] from the employment duties for personal purposes.").
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21 F. The Sixth Cause of Action Fails Because Safechuck Cannot Allege that the

22 Corporations Were His Fiduciaries

23 The cause of action for breach of fiduciary duty fails because Safechuck has not alleged
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24 ~ sufficient facts to establish that he and the Corporations were in a fiduciary relationship, or how

25 the Corporations breached any such duties. The boilerplate conclusion that there was an in loco

26 parentis duty(TAC ¶ 171)are not supported by the actual allegations for reasons explained above.

27 ~ But even if there is an in loco parentis duty, that means there is a special relationship for a

28 negligence-based duty of care; it does not rise to the level offiduciary duty.

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 "Before a person can be charged with a fiduciary obligation, he must either knowingly

2 ~ undertake to act on behalf and for the benefit of another, or must enter into a relationship which
da
3 ~ imposes that undertaking as a matter of law." City ofHope Nat. Med. Ctr. v. Genentech, Inc., 43

4 ~ ~ Ca1.4th 375, 386(2008)(brackets and internal quotation marks omitted). Here, there are simply no

5 ~ allegations whatsoever to support a finding that the Corporations "knowingly undertook] to act on

6 ~ behalf and for the benefit of[Safechuck], or" that the Corporations "enter[ed] in a relationship
ily
7 which imposes that undertaking as a matter of law." Ibid.

8 Safechuck alleges the following to support his claim that the Corporations were his
.
a
a 9 fiduciaries, because he and his mother "agreed to place their trust and confidence" in them,
a
m
x
a ~o expecting them to "ensure [Safechuck's] safetey."(TAC ¶ 172.) But there are nofactual
o
A o ~~ 11 allegations to back up this legal boilerplate. The mere fact that Safechuck "trusted" the

~3 ~~~ 12 Corporations does not come close to supporting an allegation that they were his fiduciaries. See,
ich
a Mgo
~ Q~~ 13 e.g., City ofHope,43 Ca1.4th at 389("With respect to City of Hope's claim that it reposed trust
0
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~ ~ ~`; 14 and confidence in Genentech, we note that `[e]very contract requires one party to repose an
~ mQo
z ~ Z °D 15 element of trust and confidence in the other to perform."').
~ =o~
~ ~~~° 16 The new allegations that Michael and Defendants groomed minors in the entertainment
ae
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~ o~m 17 ~ industry, the Corporations arranged and/or paid for lodging or travel, and that the Corporations
~ 00 w
a ~ 18 paid for food or cleaned Michael's house are insufficient to rise to the level of special relationship
a
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z 19 to create even negligence duty. See supra, Section III.C. Such allegations are grossly insufficient
.
,
20 to rise to the level of a fiduciary relationship, and cannot be squared with the numerous allegations
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21 making it clear that the core relationship was between Michael and Safechuck, not the

22 Corporations. The demurrer should be sustained as to all causes of action.

23 DATED: March 31,2017 KINSELLA WEITZMAN ISER KUMP &
om

ALDISERT LLP
24

25

26 Jonathan P. Steinsapir `
Attorneys for Defendants
27 MJJ Productions, Inc. and MJJ Ventures, Inc.
28

DEMCJRRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT
1 DECLARATION OF JONATHAN P. STEINSAPIR

2 I, Jonathan P. Steinsapir, declare as follows:
da
3 1. I am admitted to the State Bar of California and I am a partner at Kinsella

4 Weitzman Iser Kump & Aldisert, LLP, counsel of record for Defendants MJJ Productions, Inc.,

5 and MJJ Ventures, Inc. I have personal knowledge of the facts set forth herein, which are known

6 by me to be true and correct, and if called as a witness, I could and would competently testify
ily
7 thereto.

8 2. On March 8, 2017, I sent an email to counsel of record for Plaintiff, explaining that
.
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a 9 Defendants planned to file this demurrer. I explained that the general legal basis for this demurrer
a
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o
A o ~~ 11 and confer did not appear to be necessary. Counsel for Plaintiff responded in an email and agreed
Q o~~
~ ~i o co 12 that no further meet and confer was necessary.
o rn ~
ich
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~ ¢~m 13 I declare under penalty of perjury under the laws of the State of California that the
x Q o~
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~ mQo
z ~ Z 00 15 Executed March 31, 2017, in Santa Monica, California.
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Jonathan P. Steinsapir
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20
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21
10386.00254/382792
22

23
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24

25

26

27

28

24
DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT